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Allahbad High Court
T.S.MISRA
Ram Bilas Tewari - Appellant
Versus
Shiv Rani - Respondent
Decided On : 05/20/1977
PARTITION ACT, 1893 - SECTION 4 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 44 - PARTITION OF DWELLING HOUSE - CONDITIONS PRECEDENT - UNDIVIDED FAMILY - SALE OF SHARE BY STRANGER - NO BAR TO PARTITION.
Fact of the Case:
The plaintiff, Ram Bilas Tewari, filed a suit for partition of a house against the defendants, Smt. Shiv Rani and others. The house originally belonged to Ram Bali, who executed a gift deed in favor of his daughter, Smt. Mahdei. After Smt. Mahdei's death, the house devolved on her mother, Smt. Mangla, and then to her son, Ram Charan, and daughter, Smt. Saheb Dei. Ram Charan executed a gift deed of the entire house in favor of his wife, Smt. Shiv Rani, while Smt. Saheb Dei sold her share to Ram Bilas. The plaintiff claimed half share in the house, while the defendants contended that the plaintiff was not entitled to partition under Sections 44 of the Transfer of Property Act and 4 of the Partition Act.
Finding of the Court:
The court held that the plaintiff was entitled to partition of his share in the house. It found that the house was not a dwelling house belonging to an undivided family, and therefore, the provisions of Sections 44 of the Transfer of Property Act and 4 of the Partition Act did not apply. The court also found that the plaintiff had not sought joint possession of the house, but only partition of his share.
Issues: Whether the plaintiff was entitled to partition of his share in the house.
Ratio Decidendi: The court held that the plaintiff was entitled to partition of his share in the house because the house was not a dwelling house belonging to an undivided family, and therefore, the provisions of Sections 44 of the Transfer of Property Act and 4 of the Partition Act did not apply. The court also found that the plaintiff had not sought joint possession of the house, but only partition of his share.
Final Decision: The court allowed the appeal, set aside the decree passed by the lower court, and decreed the suit for partition of the plaintiff's share in the house.
2. Before the appellate court below it was stated by the learned counsel for the appellant as also the respondents that the plaintiff got only half share in the house whereas the remaining half belonged to Ram Charan and then the remaining half share of Ram Charan came to be owned by Smt. Shiv Rani. In this way Ram Bilas has half share in the house and the other half belongs to Smt. Shiv Rani, respondent No. 1.
3. For the appellant it was urged that neither the provisions of S. 44, Transfer of Property Act, nor those of S. 4 of the Partition Act, 1893 bar the relief for partition. S. 44 of the Transfer of Property Act reads as under:-
"44, Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or my interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give effect to the transfer, the transfers right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
Section 4 of the Partition Act, 1893 stipulates:-
"4 (1) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.
The provisions of S. 4 (1) of the Partition Act as also those of S. 44 of the Transfer of Property Act would be an impediment to a remedy for partition where a share of a dwelling house belonging to an undivided family has been transferred to a person who is a stranger to the family and who seeks partition of the house. The conditions precedent for invoking the provisions of the aforesaid provisions are that the house must be a dwelling house, secondly it must belong to an undivided family, thirdly a share of such a dwelling house has been transferred to a person who is stranger to the family and fourthly the transferee sues for partition of the house.
4. In the case in hand, the house which was subject of transfer to the plaintiff, is no doubt a dwelling house but it did not, however, belong to an undivided family. Ram Charan and Smt. Saheb Dei who ultimately came to own the said house did not form a joint family. Similarly Smt. Shiv Rani and Smt. Saheb Dei also did not form an undivided family. That being so, the sale of the share of Smt, Saheb Dei in the house in question to Ram Bias, who is undoubtedly a stranger to the family of Smt. Shiv Rani cannot be said to be a sale of a share by a member of an undivided family; hence neither S. 44 of the Transfer at Property Act, nor S. 4 (1) of the Partitio
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